By Michael Amoruso, italian lawyer and Director of Legal & Communication Division of STAM Strategic & Partners Group Ltd – May 2020
The case of Silvia Romano’s kidnapping, released a few days ago, is thundering on several fronts and is grafted, both from a legal and a security point of view, into multiple lanes that will lead to disparate destinations of which one is at least certain: the responsibility of Africa Milele Onlus.
From open sources, the latter is the voluntary association with which Miss Romano, 23-year-old Italian (at the time of the events), graduated and without any relevant professional experience, in 2018 she went to Kenya, to Chakama, to carry out her humanitarian action consisted in making the children of the village play, where she was kidnapped on 20 November of the same year. Miss Romano, moreover, besides not being a cooperator, was not even a volunteer, at least in the customary sense in force in the world of United Nations cooperation, according to which a volunteer is such if she has a remunerated contract and works within a specific development program.
Beyond the judicial criminal aspect, obviously still in progress, relating to the crime of kidnapping and any other concurrent or related crimes, a twofold issue emerges unquestionably concerning the responsibility of the employer in Italy.
Before delving into both themes, however, it is necessary to make a very brief introduction, so that even non-professionals can understand clearly and linearly the continuation of this paper.
Until 2001, criminal liability was exclusively attributable to a natural person – and not even a legal person – whose legal principle was well expressed in the Latin brocardo “Societas delinquere non potest”.
With the introduction of the Legislative Decree of 08/06/2001 n ° 231 (so-called Legislative Decree 231/2001), having witnessed in the previous years a strong increase in criminal offenses committed by natural persons to favor entities or legal persons, the administrative liability of legal persons, companies and associations, even without legal personality, was governed by a fact dependent on an offense committed by a person belonging to them. A sort of authentic and innovative criminal liability, in that the entity – for which the person who committed the crime works – is subjected to criminal proceedings and, in case of ascertainment of responsibility, penalties will be imposed, including pecuniary penalties, the confiscation and disqualifications (including the definitive impossibility of carrying out the activity). At the same time, during the preliminary investigations real precautionary measures may be issued against it, thus paralyzing the exercise of the activity even before a conviction.
On the basis of this, the catastrophic effects in financial terms of the institution and of all employees – who would obviously lose their jobs – in the hypothesis of involvement in the criminal proceedings for one of the offenses contemplated by the aforementioned legislative decree.
Precisely for this reason Legislative Decree 231/2001 offered the possibility for the body to demonstrate, even immediately, its extraneousness to the predicate offense through the adoption of organizational management and control models, in the sense of a set of protocols that regulate and define the company structure and the management of its sensitive processes. In essence, the model must: 1) carry out the risk assessment, to identify, analyze, measure and treat the risk of committing crimes in the various areas of corporate activity (both consolidated and developing ones ); 2) implement specific procedures, capable of managing risk, preventing the implementation of illegal conduct in areas where the risk of crime is higher. 3) define the management structure for the prevention of crimes, i.e. the ethical principles, the resources (human, economic, training, information), the responsibilities and the information flows, which allow to apply and update the prevention and prevention procedures detect over time the emergence of new risk areas.
It is clear that this is a delicate and fairly complex sector, whose global effectiveness cannot be explained here.
Returning to the two issues involving the employer, the first refers from an administrative point of view to the entity, while the other refers from a criminal point of view only to the legal representative.
From a combined reading of article 28 of Legislative Decree 81/2008, of Articles 32, 35 and 41 of the Italian Constitution and art. 2087 of the Italian civil code, the employer has a duty to assume all the security risks. In fact, he is required to guarantee his staff all the safety measures necessary for carrying out the activity in charge, including those relating to events from outside, such as kidnapping, personal injury or death following of an attack or kidnapping.
With regard to the case of Silvia Romano, the aforementioned obligations also apply to “volunteers” according to the provisions of article 3 paragraph 12-bis of Legislative Decree 81/2008.
The second topic of interest is that relating to the administrative liability of entities for a fact dependent on an offense committed by a person belonging to them.
First of all, always with regard to the case of Silvia Romano, two points must be verified: whether non-profit organizations, such as non-profit organizations, are among the subjects of application of Legislative Decree 231/2001 and, subsequently, it is necessary to verify whether among the crimes indicated in the decree there is anyone to be able to subsume in the specific case.
With regard to the first point, although in the past the doctrine had supported the inapplicability of Legislative Decree 231/2001 to non-profit entities, insofar as they are not bearers of economic advantages or interests, referring to art. 5 of the aforementioned decree, currently both jurisprudence and doctrine confirm its applicability. It is believed, indeed, that advantage or interest have no exclusively economic characterization, as they can also occur for crimes of a non-economic nature such as serious and very serious injuries or manslaughter.
In addition, art. 1 of the aforementioned decree expressly establishes that “The provisions of this Decree apply to entities with legal personality and to companies and associations also without legal personality”.
Finally, the National Anti-Corruption Authority, with Resolution no. 32 of 20 January 2016, called “Guidelines for the award of services to third sector entities and social cooperatives” (Published in the Official Gazette on 6 February 2016, no. 30), in paragraph 12, urges the contracting stations “to verify compliance by non-profit organizations with the provisions of Legislative Decree 231/2001 “. According to the resolution, non-profit bodies must adopt an organization model and appoint a body responsible for supervising the functioning and observance of the model and updating it.
That said, the next point is to identify one of the crimes covered by Legislative Decree 231/2001 in which to subsume the concrete case of the kidnapping of Silvia Romano.
Well, even if the fatal event did not occur, as happened in the case of the two of the four employees of the Italian company Bonatti in Libya, the only incriminating rule would always be the same, that is, that provided for by Legislative Decree 231/2001, article 25-septies paragraph 3 – serious or very serious negligent injuries committed in violation of the rules on the protection of health and safety at work.
The conditional is a must as currently, in the absence of public information, on the one hand, on real and ascertained physical and / or psychological injuries suffered by Romano, on the other hand on the registration in the register of suspects in Africa Milele Onlus, it is not possible expresses no evaluation.
According to the law and established by jurisprudence on several occasions, as already said, even a non-profit organization is subject to Legislative Decree 231/2001, therefore it would be necessary to register the aforementioned non-profit body in the register of suspects. At the same time, according to the writer, it would be necessary, as well as appropriate, for the competent public prosecutor to proceed pursuant to art. 360 c.p.p. with a non-repeatable technical assessment of the state of health of Romano, in order to ascertain whether there have been the aforementioned physical and / or psychological injuries.
In this matter, as in other past, what emerges in a problematic way is not only the legal aspect but, as already mentioned in the introduction, the aspect of security.
Closely connected to both Legislative Decree 81/2008 which to Legislative Decree 231/2001 is raised as a parameter of legal necessity, especially for the activities that employees of entities carry out abroad, in countries with high anthropogenic and natural risk, the aspect of safety, intended both as a safety framework for the worker and as a preventive travel training activity.
The criminal repercussions of both the legal representatives and the companies, in the event that serious or very serious culpable injuries have been perpetrated or even manslaughter due to the violation of the rules on the protection of health and safety at work, inevitably reflect the absolute predisposition of all the instruments so that these violations do not take place.
In the specific case, the elements under discussion are two and apply not only to Italian legislation but also to those of other countries.
As regards training, the same as being necessary for the cultural and social aspects of the place where it is going to carry out the activity, must consist more than anything else in the awareness (Awareness) of all the risks associated with the workplace. These are training courses on Terrorism Awareness, the awareness of avoiding kidnappings aimed at detention as hostage (Anti Kidnap & Hostage Awareness), escape and evasion from hostile environments (HEE – Hostile Environment Escape & Evasion) ) and many other related courses.
It is not required that the worker be able, on his own, to make safety for himself, but it is essential that he be trained and educated to deal with any risk and danger and, at the same time, allow the safety device not to be a ballast.
The second element that detects is precisely that of the security device.
It is unthinkable and irresponsible – as such it is in fact subject to criminal laws as indicated above – to send, even mere volunteers of non-profit organization, without a real and professional security device that is absolutely armed. For insiders, security is not limited only to armed escort, but there are indispensable processes and functions, such as the constant presence of an information division.
In the absence of the two elements, anyone must remain in their own territory, where there are many voluntary activities to be carried out.
By reviewing the conclusions, the current Italian regulatory framework is incomplete. In order to avoid further cases such as that of Silvia Romano, it will be appropriate to create a national training and control body. A subject who, on the one hand, constantly directs the guide lines on the subject of training for safety abroad, on the other checks the requirements of all those who travel for work abroad, obviously on a half-yearly or annual basis, and , if they do not have, even partially, deny the work visa.
Finally, the number of Italian companies that will entrust to professional and competent corporate structures (Private Security Companies) will be even more growing, both for training on awareness of the safety of their workers and for the security framework to be created and stabilized in each location in which they will go about their work as employees or volunteers.
Currently there is no Italian law regulating the establishment of PSCs or PMS’C Contractors, therefore part of the Italian GDP – and with it information related to the activity of employees of Italian companies abroad – will inevitably flow outside of Italy, unless politics wakes up.